A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Tuesday, January 17, 2012

Self-Represented Litigants

There's an interesting phenomenon which one can easily notice when surveying jurisprudence: When one side is self-represented, and the other is represented by a lawyer, the side represented by a lawyer is almost always successful.

This is just as true at the Human Rights Tribunal and Small Claims Court - processes designed to be more accessible to self-represented litigants - as at other court levels. (Indeed, the trend is more easily seen at those levels, because there are many more self-represented litigants.)

Why is this?

I could engage in shameless self-promotion and say that it's because a lawyer's advocacy skills are superior to the self-represented litigant; the lawyer is able to present his client's case in a better light and convince the adjudicator to come down on his side. To some extent, this is true - the advocacy aspects of law are not to be underestimated. But it is only a part of the explanation, I think.

I have heard people argue that Courts and Tribunals do not treat self-represented litigants fairly, and do not take them seriously. I don't really believe this - in terms of process, Courts and Tribunals bend over backwards for self-represented litigants. And it's far easier for me to believe that a Court is ignoring a self-rep's argument because of the tenuous (or non-existent) merits of the argument itself, rather than an inherent bias towards self-represented litigants. You might be surprised by how many times I have seen people who represented themselves complain that the judge ignored their incontrovertible proof that they were right...where it does not appear to me that the facts proven have any relevance to the issues in dispute. If there is an aspect of the system that does not treat self-represented litigants fairly, it is the fact that the legal system itself is so arcane and complicated that it cannot easily be understood by a self-represented litigant.

No, the biggest reason for the discrepancy in the jurisprudence is that a self-represented litigant is less likely than a represented party to be aware of the inherent difficulties of his or her position. In other words, they will litigate matters that should not be litigated, taking positions which any lawyer would know are unsustainable.

I have been retained to act opposite self-represented litigants on a few occasions. The truth is that this makes my job harder. When I am facing a lawyer on the opposite side, we have a common understanding of process and substantive law. This means that I expect to be able to have a meaningful discussion with the lawyer about settlement, and if we cannot settle the matter, it is usually because the matter is one which reasonably calls for adjudication. Moreover, it means that I can usually expect the lawyer to follow the proper process, disclosing the necessary documents in a timely manner, etc. With a self-represented litigant, you never know what you may have to deal with.

On one occasion that particularly stands out, I dealt with a self-rep taking a position which was quite weak, but she did not file or serve any documents in advance of the application hearing. It was not even clear that she would show up. Because of the failure to serve documents, she was not technically entitled to even address the Court on the matter, much less to lead any evidence. The trouble is that, as I noted above, the Courts tend to bend over backwards for self-represented litigants, so there was a risk that she would be allowed to do both. Being cognizant of the possibility, I had to spend even more time preparing for the hearing than I would have had to if it were a lawyer on the other side.

Lo and behold, she shows up with a sheaf of documents in hand that she wants to rely on. I was pretty confident in my case, but nonetheless I didn't want to have to deal with documents I had never seen before, so I took a position which I felt I could portray as eminently reasonable: I won't object to her making submissions, but I will object to her relying on any documents or other evidence not properly before the Court. The judge agreed. Not surprisingly, she had to be curbed a couple of times during her submissions when she tried to branch off into unsupported facts. Not surprisingly, my client was successful. Equally unsurprisingly, my client got a costs award - it didn't address her costs in full, yet it was still a substantial amount of money for the other party.

The lesson is simple: Lawyers may be expensive, but they are important. It isn't just that they'll help you to win your case, or achieve a more favourable settlement, but there is also significant value added in learning that your case is unlikely to be successful. People are always coming to me for good news. They always want me to tell them that they're right to do what they hope to do, or that they're going to be successful in their cases. Fortunately for all of them, I don't bow to that pressure. I give advice which is realistic and practical. But, as disappointing as realistic advice may be in some situations, knowing what you can't do is just as important as knowing what you can do in terms of managing risk and reducing liabilities. And if you're already in litigation, knowing that you will most likely not succeed can be just as valuable as knowing that you likely will.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.